During last week’s confirmation hearings for Sonia Sotomayor, there were repeated calls from all concerned to show fidelity to the law, to call balls and strikes, to keep personal opinions out of judicial decision making. These statements were emblematic of the modern rules of confirmation hearings, in which any admittance of the role of personal interpretation will automatically raise the hackles of the other side, whether it’s John Roberts admitting “yes, I generally side with the powerful” or Sotomayor saying “as an underdog, I understand where underdogs come from.” Instead, everyone maintains the fiction that it’s all about facts and laws.
Of course, being a judge is very much about ruling on how the facts of a case fit the law as written. But sometimes the facts don’t exactly fit the law, and so the judge has to make some….wait for it….judgments. If it was all automatic, just applying the facts and law, then we could have machines do it, or bureaucrats. Even the Wall Street Journal recently noted that “judges are not algorithms.” If this judging gig was just calling balls and strikes, then the Supreme Court and courts of appeal and every other multi-judge panel would never have split decisions; everyone would simply agree on the facts and the law.
But we do have split decisions, because the facts are sometimes complicated and messy, and how a judge thinks can influence how they sort through the mess. Rather than pretending this doesn’t happen, wouldn’t we be better off addressing it and actually understanding how a nominee might rule? Maybe not. That might inflame senators’ passions so much that nobody could ever be approved. But it seems crazy to have a system where everyone is lying, we all know they’re lying, and the lies are essential to making the system work.
By the way, I’m not just talking out of my butt here. The friendly staff at the U.S. District Court listened to my diatribe and gently corrected me where appropriate.
Thoughtbasket 
I agree with you with regard to the fact that everyone involved in this whole process is ignoring the fact that Judges are human and thus their personal virtues and vices will influence their decisions but then isn’t that why most of us also know that the confirmation hearings are mere window dressings for an otherwise obvious ratification of J. Sotomayor as the next Supreme Court Justice. In effect, the whole confirmation hearing is a waste of time save for the few politicians who are seeking headlines to show the folks back home that they are representing them. To me, it is this aspect of the hearings that is most troubling as you can then see what part of the country is still accept racial and ethnic diversity within the governing bodies of our country. Hence, you have Senator Sessions going on and on about how horrible it would be for Judge Sotomayor’s background and experiences influence her judging despite the fact that we know this is inevitable. Yet, these very same issues did not arize in any meaningful way during the previous two conservative white christian male nominees, Justice Roberts and Alito. The reason is simple: For the Conservative senators from the south the past two hundred years of the white christian male hegemony on American law is nothing to fear but when that hegemony is chipped at by non white christian males, well then it’s scary. It’s especially scary when this new person says outright that she does not believe that the wise old man will not reach the same outcome as a wise old woman when deciding cases. God forbid that the white christian male interpretations of law over the past two hundred years be proven as anything but neutral and objective.
You are exactly right, and thanks for putting it more directly than I did. I understand the fear of Sessions et. al. regarding their world changing, but it’s been changing for 50 years, and it’s time they accept that.
check out my article on this issue, if you have some time: http://lawesome.wordpress.com/